¶ 107. {dissenting). Dr. Sheila Galbraith (Dr. Galbraith) seeks reversal of the circuit court's dismissal of her cross-complaint for contribution against Oseo Drug, Inc. (Oseo). The majority refuses to reinstate her contribution claim. In doing so, the court not only renders a decision that is fundamentally unfair to Dr. Galbraith but also alters and distorts *45the relationships among plaintiffs and defendants in future cases. Because I disagree with the majority's refusal to reinstate Dr. Galbraith’s contribution claim, I respectfully dissent.
¶ 108. The majority decides that issue preclusion should apply as a matter of law to this case because the holding in Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, G.A.P., 224 Wis. 2d 288, 592 N.W.2d 5 (Ct. App. 1998), does not allow a defendant to preserve a right to bring a contribution claim against a codefen-dant after the codefendant obtains summary judgment against plaintiffs. The majority also decides that regardless of Precision Erecting, the circuit court did not in fact preserve Dr. Galbraith's contribution claim against Oseo. In justifying these decisions, the majority paints a picture in which the holding in Precision Erecting is so clear that Dr. Galbraith should have known that a court could not preserve her contribution claim, and that Dr. Galbraith could not have been misled into believing that anything she did in court preserved her contribution claim against Oseo.
¶ 109. In my view, the facts and law suggest otherwise. Dr. Galbraith had good reason to believe that the circuit court had preserved her contribution claim and that she was doing all that she was required to do under Precision Erecting. In response to Osco's motion for summary judgment, Dr. Galbraith filed a response brief to notify the circuit court that she was not making any claim against Oseo at that time but that she still had the right to file a cross-claim or a contribution claim in the future. While Dr. Galbraith did not oppose Osco's summary judgment motion, she noted factual issues that Rille could have raised to oppose the summary judgment motion if Rille had not failed to engage *46in discovery.1 Dr. Galbraith asked the circuit court to specify in its order granting Oseo summary judgment that the order was not determinative of any of her claims, or that her claims were preserved.
¶ 110. In its reply to Dr. Galbraith, Oseo vigorously opposed Dr. Galbraith's request. It asserted that (1) she had no standing to object or to limit the dismissal sought by Oseo because she had not filed any claim against Oseo; and (2) she had raised no issue of material fact.
¶ 111. At the hearing on Osco's summary judgment motion, the parties disagreed whether Dr. Galbraith could preserve her contribution claim. Oseo argued that the court should grant its summary judgment motion on the merits so that Oseo would be able to raise the doctrine of issue preclusion to preclude any later contribution claim filed by Dr. Galbraith. In support of its position that any future contribution claim would be barred, Oseo cited Precision Erecting. Rille also cited that case to argue that if the circuit court were to grant Osco's motion for summary judgment, Dr. Galbraith would not be able to raise the issue of Osco's negligence at trial. In its argument, Rille discussed the facts of Precision Erecting in detail.
¶ 112. In response, Dr. Galbraith contended that, by "standing] up and say[ing] something" about the summary judgment motion, she was doing all that Precision Erecting required to preserve her claim. Dr. Galbraith acknowledged that,
*47If it weren't for the Precision case[,] I guess I wouldn't be standing here saying we are objecting, Your Honor. We aren't standing quiet. We are expressing our concern that the Court enter the appropriate order as it relates to the plaintiff and the defendant so it doesn't damage the rest of this case.
¶ 113. The circuit court, Reserve Circuit Judge John Fiorenza presiding, responded that it was granting Osco's motion for summary judgment but that it was not ruling on the effect of summary judgment on Dr. Galbraith's contribution claim. The majority cites the circuit court's discussion to demonstrate that the circuit court did not preserve Dr. Galbraith's right to bring a contribution claim. Majority op., ¶¶ 52-55. If the circuit court's discussion were the only evidence in the record, it would be more difficult to dispute the majority's characterizations. However, the circuit court's discussion is not the only evidence. The circuit court's actions after the hearing are what misled Dr. Galbraith into thinking that she had preserved her right to bring a contribution claim.
¶ 114. After Judge Fiorenza granted Osco's summary judgment motion, Oseo and Dr. Galbraith each submitted a proposed order to Mark S. Gempeler, the regularly assigned circuit judge. Oseo submitted an order with the following language: "That the Defendant Osco[] Drugs, Inc.'s Motion for Summary Judgment is Granted and that Oseo Drugs, Inc., is dismissed from this case upon the merits with prejudice."
¶ 115. Dr. Galbraith submitted an alternative order with the following language:
1. That the defendant, Oseo Drugs, Inc.'s motion for summary judgment is granted, and the complaint of *48the plaintiff and all causes of action of the plaintiff against Oseo Drugs, Inc. is dismissed upon its merits, with prejudice.
2. That this order is no way intended to affect the rights of other parties to pursue claims under appropriate statutory and/or case law.
¶ 116. In a letter to Judge Gempeler, Oseo strongly opposed Dr. Galbraith's proposed order, opining that Dr. Galbraith was still trying to preserve her contribution claim even though Judge Fiorenza had made clear that he was not making an anticipatory ruling on the viability of any future contribution claim. Oseo noted that it was ordering a transcript of Judge Fiorenza's proceedings for Judge Gempeler to review. Oseo urged Judge Gempeler to ignore Dr. Galbraith's order.
¶ 117. In response, Dr. Galbraith also asked that Judge Gempeler review the transcript of Judge Fiorenza's proceedings before deciding between the two proposed orders and suggested that Judge Fiorenza, who heard the entire argument, might want to sign the order.
¶ 118. Judge Gempeler decided to sign Dr. Galbraith's proposed order, not Osco's. The implications of Judge Gempeler's adoption of Dr. Galbraith's proposed order are compelling and suggest that Judge Gempeler, after reviewing the transcript of the earlier proceedings and comparing the drafts, chose to adopt Dr. Galbraith's proposed order to preserve her right to bring a future contribution claim. The majority, however, claims that the adoption of Dr. Galbraith's proposed order "can be similarly understood as adopting the circuit court's 'wait and see' position." Majority op., ¶ 56 (emphasis added). The majority seizes upon Dr. *49Galbraith's concession that her proposed order was not "a model of clarity" to support its conclusion that the proposed order "could be understood as simply memorializing the circuit court's declaration at the hearing that the circuit court would not rule on the impact of its decision until a claim for contribution was actually filed and challenged." Majority op., ¶ 85 (emphasis added).
¶ 119. In relying on Galbraith's concession and in emphasizing what the proposed order could mean, the majority fails to acknowledge what the proposed order did mean. If Dr. Galbraith's order was simply to memorialize a "wait and see position," it is difficult to comprehend why Oseo so vigorously opposed it. Oseo acknowledged in its letter to Judge Gempeler that Dr. Galbraith was trying to preserve her contribution claim and therefore urged Judge Gempeler to sign its own proposed order. It is hard to imagine why Dr. Galbraith, who drafted the language in the order that the court actually signed, would have been trying to preserve only the opportunity to file a claim, rather than the right to file a claim without fear of dismissal.
¶ 120. Under the majority's "wait and see" interpretation, it would have made no difference which order Judge Gempeler signed. Dr. Galbraith would have had the opportunity to file a claim under either order — but with no practical chance of success. What Dr. Galbraith was attempting to do with her proposed order was to ensure her right to bring a contribution claim without fear of dismissal. When Judge Gempeler signed her markedly different order, Dr. Galbraith thought she had received the relief that she had requested.
¶ 121. The majority asserts that Dr. Galbraith had the right to obtain appellate review at the time the order was signed because she was an aggrieved party. Majority op., ¶ 86. But Dr. Galbraith had no reason to *50think that she was an aggrieved party. The court had approved her version of the order. In addition, upon stipulation of Rille and Dr. Galbraith, the court amended its original scheduling order, giving Dr. Galbraith a new deadline to add any additional party (such as Oseo) to the pleadings and to name experts and file expert reports. In reliance on this amended scheduling order, Dr. Galbraith proceeded with discovery against Oseo and deposed Oseo employees in Phoenix, Arizona, and named experts and provided expert reports supporting Osco's negligence.
¶ 122. Based on these facts, the majority's conclusion that the circuit court did not preserve Dr. Galbraith's contribution claim is fundamentally unfair and unjust. If the law had been clear at the time of Osco's summary judgment motion or if the court had informed Dr. Galbraith that her contribution claim would be precluded by summary judgment, the majority's conclusion would not have worked an injustice. But the circuit court was not clear in its decision, and Precision Erecting was not clear in its effect.
¶ 123. The majority cites Precision Erecting for the proposition that a court is unable to preserve a party's contribution claim in these circumstances. Majority op., ¶ 50. The majority cites three sentences from Precision Erecting to support this proposition, but it fails to consider other relevant language and fails to recognize the facts that distinguish this case from the other. See id.
¶ 124. The Precision Erecting case involved two lawsuits and multiple parties. AFW Foundry, Inc. (AFW) contracted with Antonie & Associates (Antonie) to oversee a substantial refurbishing of the foundry. Antonie, in turn, engaged various subcontractors and suppliers to effect the refurbishing. When these subcon*51tractors and suppliers were not fully paid, some of them commenced litigation against both AFW and Antonie. Precision Erecting, 224 Wis. 2d at 293.
¶ 125. Nambe Mills, Inc. (Nambe), a company in New Mexico, sold a $70,000 muller for AFW to Antonie, receiving a downpayment of $7000. It filed suit against AFW and Antonie in New Mexico when the balance was not paid. Another claimant, Precision Erecting, filed a separate suit against the two defendants in Wisconsin. AFW then filed a third-party complaint in the latter suit against Nambe, Antonie, and 22 other third-party defendants. Id. AFW alleged that Antonie was not its agent but rather the general contractor for the project, and thus AFW's liability was limited to the amount it owed Antonie under the contract. Id. at 293-94. An-tonic and Nambe each filed an answer alleging that Antonie was AFW's agent. Id. at 294. Nambe's suit in New Mexico had similarly relied on the theory that Antonie was AFW's agent when it purchased the muller. Id. at 293.
¶ 126. AFW subsequently moved for summary judgment against Antonie and some but not all third-party defendants in the Precision Erecting case, and Antonie notified the court that it did not oppose the motion. Id. at 294. Although Nambe had notice of AFW's motion, it did not appear on the motion or participate in the proceedings. Id. The circuit court granted summary judgment, establishing that Antonie was a general contractor, not an agent, and ordered pro rata payments from the amount AFW owed Antonie to the third-party defendants. Id. at 294-95. The circuit court ordered judgment in favor of Nambe for $11,340, which represented only 18 percent of Nambe's $63,000 claim. Id.
*52¶ 127. Nambe appealed from that judgment, but the court of appeals held that Nambe was precluded from arguing that Antonie was AFW's agent rather than a general contractor. Id. at 300-301. The court held that "[i]f a litigant who is not the subject of the motion for summary judgment nonetheless has reason to dispute the facts supporting the motion, it is that litigant's duty to appear and object to the motion." Id. at 292-93 (emphasis added).
¶ 128. The majority disregards this "appear and object" language when it holds that Precision Erecting forecloses the court's ability to preserve Dr. Galbraith's contribution claim. See majority op., ¶ 50. The majority does not recognize that the "appear and object" language is capable of different meanings in different contexts. To illustrate, "appear and object" could mean that Dr. Galbraith had the duty to file a cross-claim and oppose Osco's summary judgment motion. On the other hand, "appear and object" could mean that Dr. Galbraith simply had the duty to come to the summary judgment hearing and, in Dr. Galbraith's own words, "stand up and say something" as an objection. In fact, Dr. Galbraith did more than appear in the proceeding and make an objection. She did her best to preserve her claim.
¶ 129. The meaning of "appear and object" in the context of contribution claims must have been unclear even to some of the judges who decided Precision Erecting, for Judges Nettesheim and Snyder, who were both on the panel that decided Precision Erecting, were part of the panel that certified the present case to this court. In the certification, the judges asked this court to determine "the extent of a tort litigant's responsibility to appear and object to a motion for summary judgment filed against another party to the tort action, but not *53against the litigant, when the litigant seeks to preserve a potential claim for contribution against a party to the motion." Estate of Rille v. Physicians Ins. Co., 2006 WL 1009230 (Ct App. Apr. 19, 2006) (emphasis added).
¶ 130. Because the majority disregards the ambiguity of the "appear and object" language and sidesteps the factual differences in this case from Precision Erecting, the majority fails to recognize the ramifications of applying Precision Erecting in the context of contribution claims.
¶ 131. While Precision Erecting involved a multiparty suit and a summary judgment motion, it did not involve a contribution claim or a statute that expressly allows a party to file a contribution claim in a subsequent action.2
¶ 132. Moreover, the effect of the summary judgment motion on the parties in Precision Erecting was not contingent on any later finding made by the court. Unlike a contribution claim, Nambe's claim for damages was choate at the time of the summary judgment motion. See State Farm Mutual Auto. Ins. Co. v. Schara, 56 Wis. 2d 262, 201 N.W.2d 758 (1972) (describing the contingent and inchoate nature of a contribution claim). Therefore, Nambe knew that at some point during litigation it would definitely be arguing the very issue on which summary judgment was granted.
¶ 133. Finally, Precision Erecting involved a summary judgment motion against one defendant that was not challenged by a codefendant, even though the issue *54being decided clearly affected the codefendant. In those circumstances, Nambe had every incentive to fight summary judgment. Instead, it lay "in the weeds during the initial summary judgment motion." Precision Erecting, 224 Wis. 2d at 307. By contrast, Dr. Galbraith did not have every incentive to fight the summary judgment motion because, if she did, she would invite a counter attack by Oseo and thereby help plaintiff Rille make its case against both defendants. The Precision Erecting decision did not appear to force an alteration of the adversarial relationships among parties. It did not force one defendant to assume the plaintiffs burden of proof against another defendant.
¶ 134. The failure to distinguish Precision Erecting from the facts of this case is not only unjust to Dr. Galbraith but also has serious implications for defendants with potential contribution claims in future multiparty lawsuits.
¶ 135. First, as noted, the majority's holding distorts the adversarial relationship among defendants and plaintiffs by forcing codefendants to fight each other instead of fighting the plaintiff.
¶ 136. Second, in its attempt to prevent gamesmanship by defendants, the majority simply shifts the opportunity for gamesmanship from defendants to plaintiffs. Courts have bemoaned defendants' ability to "sit on their hands and wait to see what happens instead of opposing summary judgment on an issue crucial to their claims." Precision Erecting, 224 Wis. 2d at 309. The majority writes that "if Dr. Galbraith is not precluded from litigating her contribution claim, gamesmanship by the parties and abuse of the system might be encouraged." Majority op., ¶ 101. The majority, however, ignores the fact that it is giving plaintiffs the opportunity to sit back and allow codefendants to *55bloody each other and make the case for them. Plaintiffs can name as many defendants as they would like, and when any of the defendants file a summary judgment motion, the plaintiffs can sit back and let the codefendants fight to keep each other in the game.
¶ 137. Third, applying issue preclusion to Dr. Galbraith's contribution claim runs counter to the purpose of issue preclusion, which is to promote judicial efficiency and finality and protect against harassing litigation. See Precision Erecting, 224 Wis. 2d at 304. To apply issue preclusion in this context increases needless litigation by forcing defendants to keep other defendants in the litigation and to file cross-claims before they are found negligent.
¶ 138. The dilemma posed by this holding that pits defendants against each other may be a result of the shifting jurisprudence concerning the doctrine of issue preclusion, which no longer requires an identity or mutuality of parties. See Michelle T. v. Crozier, 173 Wis. 2d 681, 687-88, 495 N.W.2d 327 (1993); Amber J.F. v. Richard B., 205 Wis. 2d 510, 518, 557 N.W.2d 84 (Ct. App. 1996). Before courts shifted from formalistic requirements towards less rigid factors, the doctrine of issue preclusion envisioned that parties be formally adverse in order for issue preclusion to apply. Consequently, the older contribution cases cited by the parties may not be applicable.
¶ 139. For example, Rille cites Gies v. Nissen Corp., 57 Wis. 2d 371, 204 N.W.2d 519 (1973), arguing that Gies is directly on point and involves the same set of facts. However, Gies was decided when the doctrine of issue preclusion still required an identity of parties.
¶ 140. Gies involved a summary judgment dismissal of a defendant in a negligence action. The court determined that this dismissal barred the codefendants' *56contribution claim against the dismissed defendant (Burghardt). Id. at 377. Gies, however, is distinguishable from this case because the codefendants were already in an adversarial relationship when the circuit court granted summary judgment in favor of Burghardt against the plaintiffs. Hence, there was an identity of parties under the doctrine of issue preclusion.
¶ 141. In Gies, the plaintiffs did not originally file a claim against Burghardt. Rather, the original defendants impleaded Burghardt as a third-party defendant and then filed a cross-complaint against Burghardt. Id. at 375, 375 n.l. Burghardt first filed a motion for summary judgment on the issue of its negligence against the plaintiffs, which the court granted. Id. at 375-76. When Burghardt later filed a motion for summary judgment against the cross-complaint of the co-defendants on the same issue of negligence, the circuit court held that its summary judgment dismissal of Burghardt's claim against the plaintiffs precluded reli-tigation of the issue of Burghardt's negligence. Id. at 376, 378. In holding that the codefendants should have opposed Burghardt's motion for summary judgment against the plaintiffs, the court emphasized the adversarial relationship between the codefendants and Burghardt:
Although Burghardt filed no responsive pleading as to [the codefendants1] cross complaint, the issue of Burghardt's liability to the plaintiffs was joined between them. Burghardt and the [codefendants] were arrayed on opposite sides of the issue. The issue was proffered by [the codefendants] and controverted by Burghardt. Burghardt and [the codefendants] were adverse parties thereto.
Id. at 383.
*57¶ 142. The court in United States Fidelity & Guaranty Co. v. Goldblatt Brothers, Inc., 142 Wis. 2d 187, 417 N.W.2d 417 (Ct. App. 1987), recognized the importance of adversity of parties under the identity of parties requirement. The court cited both Gies and Bakula v. Schwab, 167 Wis. 546, 168 N.W. 378 (1918), for the proposition that "the concept of identity of parties requires that the parties he formally adverse, that is, arrayed on opposite sides of the lawsuit."3 Goldblatt, 142 Wis. 2d at 191.
¶ 143. It is doubtful that the present case would have been decided the same as it is now if it had been brought at the same time as Gies. In this case, Dr. Galbraith did not implead Oseo as a third-party defendant and had not filed a cross-claim at the time of Osco's summary judgment motion. Dr. Galbraith and Oseo were therefore not formally adverse parties.
¶ 144. While the shift away from the identity of parties requirement may be justified in the context of other claims such as the one in Precision Erecting, we ought to consider whether this shift is justified in the *58context of contribution claims. Requiring an identity of parties based on a formal adverse relationship would allow for a more balanced solution for plaintiffs and defendants.
¶ 145. If an identity of parties requirement were preserved in the present circumstances, it would allow a codefendant, like Dr. Galbraith, to have the choice in the underlying lawsuit to remain in a neutral or supportive relationship with her codefendant (Oseo) or to establish a formal adversarial relationship by filing an immediate cross-complaint. She would have to make that choice when the other defendant filed a summary judgment motion against the plaintiff. She could choose to remain in a neutral or supportive relationship with the other defendant by appearing and objecting to the summary judgment motion, thus putting the other defendant on notice that she might pursue a cross-claim or contribution claim at a later time. If she chose to remain in this neutral or supportive relationship, she would preserve a right to bring a future cross-claim or separate contribution claim but would waive the opportunity to include the issue of Osco's negligence on a special verdict in the underlying lawsuit between Dr. Galbraith and Rille. Cf. Haase v. R&P Indus. Chimney Repair Co., 140 Wis. 2d 187, 409 N.W.2d 423 (Ct. App. 1987).4 In the case of a future cross-claim, the issue of *59Osco's negligence could be litigated at a separate trial to avoid any prejudice to Rille. See Wis. Stat. § 802.07; Wis. Stat. § 805.05(2) (providing that "[t]he court, in furtherance of convenience or to avoid prejudice ... may order a separate trial of any claim, cross-claim, counterclaim or 3rd-party claim"). This would make the subsequent cross-claim similar to a contribution claim that would be litigated in a subsequent action. See Wis. Stat. § 893.92.
¶ 146. If a defendant like Dr. Galbraith did not want to risk losing the opportunity to point the finger at a codefendant like Oseo in the underlying lawsuit, she could file a cross-claim and adamantly oppose the codefendant's motion for summary judgment.
¶ 147. This approach would help to preserve the traditional adversarial relationship among plaintiffs and defendants by minimizing the plaintiffs' ability to pit codefendants against each other. While this approach does not eliminate all potential for gamesmanship by the parties, it does maintain the burden on plaintiffs to prove their case before requiring codefen-dants to do it for them. This approach also allows codefendants, who may have pre-existing relationships with each other, to remain in a supportive relationship as long as possible.
¶ 148. Because I believe this approach is more equitable than the majority's view, I would allow Dr. Galbraith to pursue her contribution claim as a cross-claim in a separaté trial or as a separate contribution claim in a subsequent action.
¶ 149. Even if the majority opinion were deemed to set out clear and sound procedure for the future, I *60believe it is fundamentally unfair to apply this procedure retroactively. Dr. Galbraith has had the rug pulled out from under her. She would surely have asked for an extension of time to file an immediate cross-complaint against Oseo if she had thought that summary judgment would preclude her contribution claim.
¶ 150. For the reasons stated, I respectfully dissent.
For instance, Dr. Galbraith specified that there had been no discovery of Oseo personnel and no discovery about Osco's policies and procedures, all of which might have revealed Osco's negligence.
Wisconsin Stat. § 893.92 provides the following: "An action for contribution based on tort, if the right of contribution does not arise out of a prior judgment allocating the comparative negligence between the parties, shall be commenced within one year after the cause of action accrues or be barred." Wis. Stat. § 893.92.
While the court recognized that Bakula v. Schwab, 167 Wis. 546, 168 N.W. 378 (1918), was modified eight years later in Wait v. Pierce, 191 Wis. 202, 209 N.W. 475 (1926), the court was "unpersuaded that the modification affected the standard for adversity..., especially since the supreme court in [Gies] closely tracked the language of the Bakula adversity test." United States Fid. & Guar. Co. v. Goldblatt Bros., Inc., 142 Wis. 2d 187, 191-92, 417 N.W.2d 417 (Ct. App. 1987). The Bakula court defined the standard as the following: "What is meant by adverse parties scarcely needs definition. Its significance is apparent from the expression itself. They must be opposite parties to an issue between them. The issue must be proffered by one and controverted by the other. They must be arrayed on opposite sides of the issue." Bakula, 167 Wis. at 555-56.
In Haase v. R&P Industrial Chimney Repair Co., 140 Wis. 2d 187, 193, 409 N.W.2d 423 (Ct. App. 1987), the court held that where an alleged tortfeasor is adjudged to be free from negligence as a matter of law, the issue of the alleged tortfeasor's negligence should not be included on a special verdict in the plaintiffs action against another alleged joint tortfeasor. The court found inapplicable Payne v. Bilco Co., 54 Wis. 2d 424, 431, 195 N.W.2d 641 (1972), which held that it was necessary to include in the special verdict for comparison *59purposes all alleged tortfeasors, regardless of whether they were settling tortfeasors or never parties to the action.